565 N.E.2d 610 | Ohio Ct. App. | 1989
An indictment was returned against the defendant-appellant Pennie Runnels, charging her with one count of aggravated vehicular homicide, in violation of R.C.
The uncontroverted facts establish the following: On July 7, 1987, at approximately 6:45 p.m., the defendant, Pennie Runnels, was driving an automobile westbound on Mayfield Road in Cleveland Heights, Ohio. She went through the intersection of Forest Hills Boulevard and collided with the side of an automobile driven by Edward Broughton, who was proceeding southward on Forest Hills Boulevard. Two women were passengers in the automobile driven by Broughton.
All parties were taken to Huron Road Hospital by ambulance. Broughton was pronounced dead at 7:25 p.m. from injuries he sustained in the accident. The defendant was admitted for treatment of her injuries.
Upon admission to the emergency room at Huron Road Hospital, the defendant was placed under arrest and charged with running a red light, driving under the influence of alcohol, and driving while under suspension. These charges were later changed to aggravated vehicular homicide following Broughton's death.
The matter came up for hearing and trial on December 8, 1987. A hearing was had on the appellant's pretrial motion to suppress the results of a blood-alcohol test which was taken without the appellant's consent while she was hospitalized immediately following the automobile accident. The appellant's motion to suppress was denied.
The appellant then entered a plea of no contest to the charge of *121 vehicular homicide, with the violence, DWI and repeat offender specifications. Defense counsel, however, reserved the right to argue whether the defendant should receive a definite or indefinite sentence.
Following the defendant's no contest plea and the court's subsequent finding of guilt, the trial court sentenced the appellant to a term of imprisonment for three to five years and revoked her driving privileges for life.
The appellant now appeals her sentence, bringing six assignments of error.
The first four assignments of error claim:
"I. It was prejudicial error for the trial court to sentence the appellant to an indefinite term of imprisonment where she was convicted of a fourth degree felony which is not an offense of violence pursuant to Ohio Revised Code Section
"II. It was prejudicial error for the trial court to impose an indefinite term of imprisonment on the appellant where the gravamen of the offense for which appellant was convicted cannot be committed without causing death and where the record is silent as to the deceased's condition following the accident and prior to death.
"III. The trial court committed prejudicial error in failing to find that the application of a physical violence specification pursuant to Ohio Revised Code Section
"IV. The trial court committed reversible error when it imposed an indefinite sentence of imprisonment against the appellant in light of the fact that Ohio Revised Code Section
With these assignments of error, the appellant contests the court's consideration of the violence specification in sentencing her to an indefinite term of incarceration upon finding her guilty of aggravated vehicular homicide. The appellant contends that violence is inherently part of aggravated vehicular homicide, and that a separate violence specification is unwarranted.
R.C.
"For a felony of the fourth degree, the minimum term shall be eighteen months, two years, thirty months, or three years, and the maximum term shall be five years."
Thereafter, R.C.
"Whoever is convicted of or pleads *122 guilty to a felony of the third or fourth degree and did not, during the commission of that offense, cause physical harm to anyperson * * * and who has not previously been convicted of an offense of violence shall be imprisoned for a definite term, and, in addition, may be fined or required to make restitution. * * *" (Emphasis added).
R.C.
This court has previously found that the violence specification is not an element of aggravated vehicular homicide, but rather a factor which permits the imposition of an indefinite sentence.State v. Kavlich (1986),
We find the language of R.C.
It is of no consequence that the offense is not included as one of the offenses of violence set forth in R.C.
In the case now before us, the violence specification was included in the indictment. The defendant was found to have caused physical harm to Edward Broughton, as the term is defined in R.C.
Accordingly, we overrule the appellant's first two assignments of error.
To meet the requirements of substantive due process, a state statute must both respect an individual's fundamental rights and be rationally *123
related to a legitimate governmental purpose. See Bowers v.Hardwick (1986),
The issue now before us is not new to Ohio courts. In State v.Lee (Aug. 14, 1987), Lake App. No. 11-242, unreported, the Court of Appeals for Lake County faced a challenge to the trial court's inclusion of a violence specification on an aggravated vehicular homicide conviction. As in the case now before us, the defendant, a drunk driver, was found to have recklessly killed an innocent victim. The court did not find that the inclusion of the violence specification on a charge of aggravated vehicular homicide offended the defendant's constitutional guarantees. It is uncontroverted that the victim suffered physical harm, notwithstanding the fact that every victim of aggravated vehicular homicide suffers physical harm. Accordingly, the violence specification was found to be available to enhance the punishment of an individual found guilty of aggravated vehicular homicide.
We, too, agree that the availability of a violence specification on an aggravated vehicular homicide indictment was well within the purview of the General Assembly in enacting R.C.
We further find that the application of R.C.
Due process requires that the prohibitions set forth in a criminal statute be clearly defined. Grayned v. City of Rockford
(1972),
R.C.
Accordingly, we overrule the appellant's third and fourth assignments of error.
"V. The trial court erred in failing to suppress evidence of a blood alcohol test administered to the appellant without her consent and after she had refused the test on three occasions."
The appellant argues that the trial court erred in denying her motion to suppress the report from her nonconsensual blood test, such motion having been made and ruled upon prior to her no contest plea. Crim. R. 12(H) authorizes such an appeal.
In his police report at the scene of the accident at issue, the reporting officer noted the appellant's apparently inebriated condition. Subsequently, following her arrest for drunken driving, a blood test was administered to the appellant by a hospital technician on the order of the arresting police officer. The appellant refused to consent to the blood test and now appeals, claiming that R.C.
In Breithaupt v. Abram (1957),
The court expanded its position in Schmerber v. California
(1966),
On appeal, Pennie Runnels now contends that in Ohio, R.C.
R.C.
"(A) Any person who operates a vehicle upon the public highways within this state shall be deemed to have given consent to a chemical test or tests of his blood, breath, or urine for the purpose of determining the alcohol, drug, or alcohol and drug content of his blood, breath, or urine if arrested for operating a vehicle while under the influence of alcohol, a drug of abuse, or alcohol and a drug of abuse or for operating a vehicle with a prohibited concentration of alcohol in the blood, breath, or urine. * * *"
R.C.
"(D) If a person under arrest for operating a vehicle while under the influence of alcohol, a drug of abuse, or alcohol and a drug of abuse or for operating a vehicle with a prohibited concentration of alcohol in the blood, breath, or urine refuses upon the request of a police officer to submit to a chemical test * * * no chemical test shall be given, but the registrar of motor vehicles, upon the receipt of a sworn report of the police officer that he had reasonable grounds to believe *125 the arrested person had been operating a vehicle upon the public highways within this state while under the influence of alcohol, a drug of abuse, or alcohol and a drug of abuse or with a prohibited concentration of alcohol in the blood, breath, or urine and that the person refused to submit to the chemical test upon the request of the police officer and upon the receipt of the form as provided in division (C) of this section * * * shall suspend his operator's or chauffeur's license or permit * * * for a period of one year, subject to review as provided in this section * * *."
We do not find that R.C.
It is well established that when the trial court determines that certain evidence will be admitted or excluded, the order or ruling of the court will not be reversed unless there has been a clear and prejudicial abuse of discretion. O'Brien v. Angley
(1980),
Accordingly, notwithstanding the appellant's refusal to willingly submit to a blood-alcohol test, R.C.
"VI. The trial court committed prejudicial error in finding appellant guilty of aggravated vehicular homicide when at the very best the prosecutor's recitation of the facts establishes only negligence, not recklessness."
The appellant's final assignment of error contends that the prosecutor's recitation of facts, as set forth by the prosecutor as the basis for the appellant's no contest plea, failed to establish the element of recklessness required to sustain a conviction for aggravated vehicular homicide. This assignment of error is meritless.
"Reckless conduct" is defined in R.C.
"(C) A person acts recklessly when, with heedless indifference to the consequences, he perversely disregards a known risk that his conduct is likely to cause a certain result or is likely to be of a certain nature. A person is reckless with respect to circumstances when, with heedless indifference *126 to the consequences, he perversely disregards a known risk that such circumstances are likely to exist."
Evidence that a defendant was driving under the influence of alcohol is sufficient to support a finding of recklessness. SeeState v. Kavlich (1986),
In the case before us, the prosecutor's recitation of facts included the statement that the defendant was intoxicated at the time of the automobile collision at issue. The arresting officer had noted on his report that at the time of the accident Runnels was extremely incapacitated by alcohol. The appellant's blood alcohol level was determined to be .21 percent. The appellant pled no contest to the charge that she had been driving under the influence of alcohol.
Accordingly, we overrule the appellant's sixth assignment of error.
Judgment affirmed.
PATTON, P.J., and DYKE, J., concur.